In re Witherspoon

July 29, 2010

IN THE MATTER OF DAVID J. WITHERSPOON, AN ATTORNEY AT LAW

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this matter, the Court considers the appropriate level of discipline for an attorney with a history of discipline who now has been found to have engaged in additional unethical conduct in violation of the Rules of Professional Conduct (RPCs), the most serious of which involves offering women legal services or reductions in his fees in exchange for sexual favors. Respondent, David J. Witherspoon, was admitted to practice in 1994 and was disciplined four times between 2002 and 2008 through a series of admonitions and a reprimand, primarily for failing to communicate with clients.

In the current matter, besides the allegations pertaining to sexual misconduct, the Office of Attorney Ethics (OAE) charged Witherspoon with practicing law during the fifteen-month period he was ineligible to do so because of his failure to pay the annual assessment to the New Jersey Lawyers' Fund for Client Protection and with failing to maintain the books and records required of attorneys, for which he had been disciplined in the past. Witherspoon acknowledged he had practiced while ineligible and that he did not maintain his books and records properly.

At a hearing before a panel of the District VI Ethics Committee (DEC) that dealt mainly with the charges of attempted sexual bartering, Witherspoon and the presenter for the OAE entered into a stipulation of facts in lieu of testimony by the women from whom Witherspoon had sought sexual favors of various kinds. According to the stipulation, in four separate matters between 2001 and 2006, Witherspoon offered discounted legal services or fee refunds to three female bankruptcy clients and the adult daughter of another bankruptcy client in the context of suggestions that they perform certain acts with him or with other women while he watched. The stipulated facts included Witherspoon's offer to the daughter of a client that he would forgive $300 of her father's fee obligation if she would meet Witherspoon "in a hotel room for three hours" and his suggestion to a female bankruptcy client that she could satisfy her outstanding legal debt either by allowing him to watch her and her female friend "make out" or by allowing him to join in. Witherspoon commented to a lesbian client that her lesbianism was caused by "a bad experience with the male sexual organ." He told her that he was "a breast man," that she was "looking good," and that he would return $660 of fees she had paid him if she joined him on his office couch.

All of these women believed that by his comments, Witherspoon was proposing to exchange sexual favors for legal fees. The lesbian client perceived his remarks as "a denigration of her lesbian lifestyle." Some sought or retained new lawyers to handle their matters. Witherspoon asserted that the comments he made were in jest and that he never intended to demean or insult the women. He contended that his office atmosphere was quite relaxed and that very personal conversations were common.

The DEC rejected Witherspoon's defenses and explanations and recommended that he be censured for his unethical conduct, which the DEC found included conflict of interest, discrimination based on sex or sexual orientation, intention to embarrass, burden or delay, and conduct prejudicial to the administration of justice, in addition to his conceded practicing while ineligible and violations of the recordkeeping rules. The DEC also recommended that Witherspoon be required to attended sexual harassment sensitivity training and put accounting controls in place in his practice.

The Disciplinary Review Board (DRB), which conducted a de novo review of the matter after receiving the DEC's recommendation of discipline, found clear and convincing evidence of most of the unethical conduct found by the DEC. The DRB disagreed with the findings of a purpose to embarrass or burden and conduct prejudicial to the administration of justice and so dismissed those charges. A six-member majority of the DRB concluded Witherspoon should be suspended from practice for a period of three months. Two dissenting members voted to suspend Witherspoon for six months because of his ethics history, arrogance, "lack of moral values," lack of contrition, and "poor attitude" toward the disciplinary rules.

The DRB filed its decision with the Court, and on its own motion, the Court ordered Witherspoon to show cause why he should not be disbarred or otherwise disciplined.

HELD: For his unethical conduct in this matter and his history of discipline, David J. Witherspoon is suspended from the practice of law for a period of one year and until he complies with conditions imposed by the Court.

1. Because of the stipulation of facts and Witherspoon's conceded violations, the Court is concerned only with the measure of discipline. Discipline for sexual misconduct has ranged from reprimands to disbarrment. The most substantial discipline has been imposed on attorneys who have been convicted of serious crimes of a sexual nature, particularly against children. The Court has cautioned that sexual offenses against clients will be dealt with severely. In In re Gallo, 178 N.J. 115 (2003), the respondent attorney entered a guilty plea to fourth-degree charges of criminal sexual contact with three clients and a self-represented litigant, each of whom he assaulted at either his office or a courthouse. The DRB concluded a three-year retroactive suspension was appropriate based on the criminal plea record, but the Court directed that a more comprehensive record be developed before determining the discipline. Thereafter, Gallo consented to disbarrment. (pp. 11-16).

2. Most disciplinary cases are very fact-sensitive. Aside from discipline for the knowing misappropriation of trust funds, for which disbarrment almost invariably will be ordered, the Court rarely has established bright-line rules in this area, even in cases of serious, violent criminal conduct. The essential purpose of New Jersey's system of attorney discipline is to protect the public, not to punish the attorney. The Court declines to declare a bright-line rule of automatic disbarrment for attorneys who conduct themselves as Witherspoon did. What discipline will be required to protect the public in a given case will turn on a fact-sensitive evaluation of the ethical lapses compared to disciplinary precedent, and consideration of the attorney's ethical history.(pp. 16-22).

3. A one-year suspension from practice, with reinstatement conditioned on the successful completion of an approved sensitivity training course and proof of the institution of accounting controls in his office, is the appropriate measure of discipline for Witherspoon. More substantial discipline is not warranted on the record in this case, which does not include criminal conduct, unwanted, traumatic physical contact, or particularly vulnerable subjects of Witherspoon's attention. Preying on clients as Witherspoon has done deserves to be dealt with harshly because it goes to the heart of the trust on which the attorney-client relationship is based, but it would be disproportionate to disbar him for his boorish, insensitive and offensive, but hardly criminal, conduct. (pp. 22-27).

JUSTICE LaVECCHIA filed a separate, dissenting opinion, in which JUSTICE ALBIN joins. JUSTICE LaVECCHIA views Witherspoon's efforts to exchange legal services for sexual favors from financially vulnerable clients, his lack of remorse or recognition of wrongdoing, together with his ethics history, as calling for nothing less than disbarrment. A zero-tolerance policy toward attorneys who prey on clients, whether financially or as Witherspoon has done, is needed to protect the public and the reputation of the profession.

On an Order to show cause why respondent should not be disbarred or otherwise disciplined.

This matter, which comes before the Court on a stipulated factual record, raises questions concerning the appropriate level of discipline to be imposed on a member of the bar who has used his license to practice law as a means to seek sexual favors from some of his clients. As offensive as that behavior is, as with all matters of discipline, it can only be addressed by considering it in accordance with the specific Rules of Professional Conduct (RPCs) that the attorney has violated and can only be appropriately punished in accordance with longstanding principles that form the existing and accepted hierarchy of our attorney disciplinary system. Applying those principles to the record before us, we reject as inadequate the disciplinary sanction of a three-month suspension recommended by the Disciplinary Review Board. For the reasons that follow, we instead impose upon respondent the sanction of suspension from the practice of law for the period of one year.

I.

Although this disciplinary matter arises in the context of a three-count attorney ethics complaint, the proceedings have focused only on the count involving sexual improprieties. For the sake of completeness, however, we recite all of the counts prior to discussing and evaluating the questions that arise from the stipulated record of respondent's sexually inappropriate behavior.

The charges included in the three-count complaint can be summarized briefly. Count One charged respondent David Witherspoon with sexual harassment, sexual discrimination and conflicts of interest, in violation of RPC 1.7(a)(2), RPC 4.4, RPC 8.4(d), and RPC 8.4(g). Count Two charged respondent with practicing law while ineligible based on respondent's failure to pay the required annual assessment to the Lawyers' Fund for Client Protection, in violation of RPC 5.5(a)(1) and RPC 8.4(d). Count Three charged respondent with recordkeeping violations comprised of failing to maintain fully descriptive client ledgers, failing to conduct monthly trust account reconciliations and failing to maintain a running balance in the trust account checkbook ledger, all in violation of Rule 1:21-6 and RPC 1.15(d).

Respondent admitted that he had practiced for more than a year while ineligible, arguing in mitigation that this was merely due to oversight. He also conceded that he had failed to properly maintain his books and records, offering in mitigation that he rarely used the trust account because of the nature of his practice and that no client had been harmed or had even complained about the way in which trust funds were handled.

Because respondent did not contest two of the counts charged, the proceedings were largely directed to Count One. Even that Count, however, was the subject of a stipulated factual record, with respondent offering explanations and arguments in mitigation. But it is Count One, and the issue as to the level of discipline appropriate for the behavior that gave rise to its charges, that has divided the members of each panel at virtually every level of the disciplinary process.

More to the point, it is Count One, and the discipline that it demands, that today divides this Court as well. We are therefore constrained to discuss at some length the underlying facts, the arguments raised by respondent by way of explanation or mitigation, and the way in which the ethical violations demonstrated by the record fit into the larger framework of our disciplinary precedents.

A.

According to the stipulated factual record, respondent offered discounted legal fees to one client in 2001, and on several occasions late in 2005 and early in 2006 to two clients and a family member of another client, in exchange for sexual favors of various kinds.

The first incident*fn1 of this kind of behavior occurred in July 2001, when S.S. retained respondent to represent her in a bankruptcy matter. During that time, he asked her "about her personal life, ask[ed] if she would go out with him and made inappropriate sexual advances to[ward her]." S.S., who believed that respondent was offering "to exchange sexual favors for representation in her bankruptcy matter," rejected his importunings and sought other counsel.

In August 2005, T.B., whose father was a bankruptcy client of respondent's, told respondent that her father did not have the sum of $300 that he then owed for respondent's services. According to the stipulated facts, respondent offered to forgive that part of the debt if he could "meet T.B. in a hotel room for three hours." Several months later, in January 2006, T.B.'s father was again behind in his payments, at which point he owed $200 that T.B. was not able to pay. Respondent told T.B. that she could "take care of the $200" if she would "come to his office in a bathing suit and dance for him." T.B. believed that these were efforts by respondent to exchange legal services for sexual favors.

In September 2005, S.B. retained respondent to represent her in a bankruptcy matter. During one of her visits to his office, when she was accompanied by a female friend, respondent commented that "many gay women 'come on' to" him. He then said that "he would like to see S.B. and her friend 'make out' . . . [and that if they did so] he would file the bankruptcy free of charge." Some time later, when S.B. arrived to make a payment toward the agreed-upon fee and told him that there was another creditor to be added to the petition, respondent "stated that he would only add the creditor to S.B.'s bankruptcy if she lifted her skirt." In yet another incident thereafter, when S.B. arrived to pay a balance due for legal services, respondent told her that she "could satisfy her outstanding legal fees by either allowing him to watch her with her female friend or by allowing him to join in." S.B. refused each of these suggestions, understanding them to be offers to exchange legal services for sexual favors. She eventually retained alternate counsel to complete her bankruptcy matter.

Finally, in September 2005, A.C. retained respondent in connection with her bankruptcy petition. When she arrived for one of her appointments, respondent made several remarks about her sexual orientation. He said, "Oh, so you're the gay girl," and "suggest[ed] that A.C.'s lesbianism was caused by a bad experience with the male sex organ." Thereafter, following an appearance with A.C. in bankruptcy court, respondent told her that "he was a 'breast man,' that she was looking good that day and that if she came back to his office and joined him on his 'office couch,' he would return to her $660 of the legal fees she [had] paid." A.C. regarded some of these remarks as "constitut[ing] a denigration of her lesbian lifestyle" and others as being "a proposal to exchange sexual favors for legal fees."

B.

During the hearing on the complaint before a panel of the District VI Ethics Committee (DEC), respondent conceded that each of the grievants would testify in accordance with the foregoing stipulated facts. In his defense, he offered a variety of explanations, rebuttals and arguments he characterized as being in mitigation. For example, he described the atmosphere in his office as being very relaxed and a place where conversations on all subjects of a highly personal nature are common. More to the point, he asserted that the comments he made were purely in jest and that he never intended to insult or demean any of the grievants.

In addition, respondent offered several specific responses to the charges. He commented that S.S. is a Muslim, describing her as someone who "wears the full garb, the full cover from head to toe," and that, at her request, he had gone out of his way to accompany her to a creditor's meeting shortly after September 11, 2001. He offered this testimony to demonstrate that, at a time when many people in this country were far from open-minded about people of the Muslim faith, he was willing to travel openly with her and appear at her side in public as her attorney. Although not refuting the stipulated facts as to which ...

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